Over the past few months, I have had client health and safety representatives asking me questions on the SACPCMP registration for safety practitioners and the legality thereof. In this article, I attempt to deal with the surface of the issues around this subject and area of interest.
What is SACPCMP?
SACPCMP is an acronym for “South African Council for Project and Construction Management Professionals” and is a juristic person established by section 2 of the Project and Construction Management Act (Act No. 48 of 2000).
The purpose of this Act is to provide for the establishment of SACPCMP, the registration of professionals, candidates and specified categories in the project and construction management professions to facilitate the regulation of the relationship between the SACPCMP and the Council of for the built environment and to provide for matters connected therewith.
What is the driver for SACPCMP registration of Safety Officers?
The Construction Regulations of 2014, provide in regulation 5(5) which deals with the duties of the client, that “Where a construction work permit is required as contemplated in regulation 3(1), the client must, without derogating from his or her health and safety responsibilities or liabilities, appoint a competent person in writing as an agent to act as his or her representative, and where such an appointment is made the duties that are imposed by these Regulations upon a client, apply as far as reasonably practicable to the agent so appointed.”
Construction regulation 8 deals with the Management and Supervision of Construction work and provides in regulation 8(6) that “No contractor may appoint a construction health and safety officer to assist in the control of health and safety related aspects on the site unless he or she is reasonably satisfied that the construction health and safety officer that he or she intends to appoint is registered with a statutory body approved by the Chief Inspector and has necessary competencies and resources to assist the contractor” The Chief Inspector has elected the SACPCMP as the statutory body referred to herein.
At the launch of the 2014 construction regulations, Minister of Public Works, Thulas Nxesi had mentioned that there is insufficient regulation in the area of health and safety, and that this is the reason for the poor standards of health and safety on construction projects. This is synonymous with the findings of the Council for the Built Environment after their investigations and research into the state of construction health and safety in the country (Infrastructure News, February 2014).
Is registration of HSE Professionals with SACPCMP a requirement to all works or a specific type of work?
It is important to note that registration is only required for HSE professionals in the Construction Industry. Then, one should note that only certain categories of professionals require registration. The SACPCMP website provides for registration in the following three instances:
– Construction Health and Safety Agent: this refers to the client appointed HSE expert;
– Construction Health and Safety Manager: this refers to the contractor appointed health and safety manager; and
– Construction Health and Safety Officer: this refers to the legally appointed project health and safety officer.
Where does this mandate for registration come from?
The Project and Construction Management Act 48 of 2000, in section 18 provides for the categories of categories of registration which, do not provide for registration of HSE Professionals explicitly. There is however provision in 18(1)(c) for additional specified categories prescribed by council.
The registration requirement is indirectly prescribed by the Construction Regulations of 2014 issued by the Chief Inspector using his powers particularly under section 43 of the Occupational Health and Safety Act 85 of 1993.
The Construction Regulations prescribe that the required registration be with a statutory body prescribed by the Chief Inspector. Whilst the Department of Labour may argue that the powers of the Chief Inspector facilitates a mandate to dictate that this registration fall under the jurisdiction of the SACPCMP, which is a juristic body independent of the Occupational Health and Safety Act 85 of 1993, can this happen without evidence of the SACPCMP including this under their area of required registration following the provisions of section 18(1)(c) of the Project and Construction Management Act 48 of 2000?
The question here is whether the Chief Inspector may choose the SACPCMP without the SACPCMP executing its own mandate of incorporating health and safety professionals under its ambit of responsibility using the mechanism provided in section 18(1)(c) of the Project and Construction Management Act 48 of 2000.
A further question would be, are the Ministers powers under section 43 of the Occupational Health and Safety Act 85 of 1993 wide enough to include a requirement for registration of health and safety professionals under the Construction Regulations? This is arguable for and against and would be left in the hands of a court to decide.
To be absolutely clear, the Construction Regulation do not place an obligation on the health and safety professional to register, but places an obligation on employers to ensure that they use registered professionals, therefore this registration is said to be an indirect requirement of the 2014 Construction Regulations. This further compounds the questions of mandate referred to above.
The administrative and practical issues with HSE professionals registering with the SACPCMP.
The frustrations complained of with the registration process is that firstly, it is time consuming. The process does not work well and isn’t established in terms of reliability. The common complaint is that registration takes too long, there are system shut downs and that the fees for membership are exorbitant.
The practical impacts of this is that since the construction regulations require this professional registration, albeit indirectly, clients do not want to fall short on this requirement and expose themselves to an audit finding by the DOL and are strictly advocating compliance with this. Due to the long turnaround times and protracted registration process, health and safety professionals are being prejudiced in that they may and are in some instances without a job due to the inefficiencies complained of and new entrants are also deprived due to the newly implemented cost and compliance requirements.
Furthermore, some health and safety professionals do not see merit in the involvement of SACPCMP in this field when they had no prior involvement.
Mr. Warren Manning’s challenge on the constitutionality of the registration process
A Durban based occupational health and safety practitioner is seeking the assistance of the court and is challenging the constitutionality of the indirect requirement of registration as contained in the 2014 Construction Regulations.
According to a video made by Mr. Warren Manning, his challenge is based on the constitutionality of the registration process. Mr. Manning is relying on the provision of section 22 of the Constitution of the Republic of South Africa, 108 of 1996 which provides for Freedom of Trade, Occupation and Profession. Section 22 provides that “Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.”
It is trite that the Constitution of the Republic of South Africa is the supreme law of the land. Section 2 of the Constitution provides that any law or conduct inconsistent with it is invalid and the obligations imposed by it, must be fulfilled. The right in section 22 highlighted above, is a provision in chapter 2 of the Constitution which is known as the Bill of Rights. Section 7(2) of the Constitution puts an obligation on the State to respect, protect, promote and fulfil the rights in the Bill of Rights and provides in section 7(3) that the rights in the Bill of Rights are subject to limitations contained or referred to in section 36 of the Bill of Rights, or elsewhere in the Bill.
Mr. Manning’s argument is that the registration of HSE professionals is a limitation of the right to free trade, occupation or profession under section 22 of the Constitution. Mr. Manning argues that the limitation of this right do not comply with the requirements of the limitation clause of the Constitution, which is section 36 of the Constitution that provides firstly that any right in the Bill of Rights may only be limited by a law of general application, which takes into account the considerations of section 36 of the Constitution. Mr. Manning argues that the Construction Regulation and the Notice issued by the Chief Inspector proclaiming the SACPCMP as the body responsible for registration of health and safety professionals, is not a law of General Application simply because, they are applicable only to Construction Professionals.
Mr. Manning’s case was set down for hearing on the 4th July 2018 but the State Attorney and the SACPCMP managed to get a postponement after late [as usual] submission of their opposing affidavits. This submission contained a reem of irrelevant information attempting to justify the existence of the SACPMCP within the Health & Safety fraternity.
From discussions with professionals in the industry, it is clear that there are countless frustrations with the application of the requirement to register, the registration process, the question of fees and the role of the SACPCMP in the process amongst others.
It is not uncommon for certain professionals to belong to regulatory bodies and require their membership in order to operate in these capacities, for example attorneys and professional engineers. What is key, is the manner in which these are implemented.
The benefits to regulation of health and safety professionals will be, inter alia, ensuring that competent and reliable resources are used in this field, there should be ongoing training and improvement exercises and best practice becomes a standard which is consistently applied.
There is merit in the argument of regulating health and safety professionals based on the importance these role-players have, in particular, in the construction industry. However, the impacts need to be carefully balanced and less obtrusive measures to be taken to minimise disruption and restrictiveness to professionals already practicing in this field and to ensure that any proposed registration required follows a legally mandated process which does not leave more questions than answers.
Once again, invitation for comment to the H&S professional body, SAIOSH, resulted in no response, who chose to play an inactive role in fear of losing their SAQA recognition.
Source: Bilaal Dawood (LLB) (MBL) | Synergetic Consulting (Pty) Ltd